Fourth Circuit affirms district court's finding that International Child Abduction Remedies Act (ICARA) does not confer jurisdiction upon federal courts to hear claims of access denials
Petitioner Sarah Claudia Aragon Cantor and Respondent Andrew Cohen married in April 1990 in Israel. During the marriage the couple had four children, R.C., A.C., I.C., and Y.C. On July 16, 1998, the couple divorced in an Israeli Rabbinical Court; it also decreed that respondent would take custody of A.C. and I.C. and petitioner would retain custody of Y.C. and R.C. Petitioner and respondent later agreed on placing the girls, R.C. and A.C., with the petitioner and the boys, I.C. and Y.C. with the respondent. On January 2, 2000, the Rabbinical Court handed down a modified divorce degree conforming to this agreement.
On July 9, 2002, the Court issued a third divorce decree providing that petitioner would retain custody over the two girls and respondent over the two boys. This decree also ruled that the two boys and A.C. should live with the respondent in Germany, where the U.S. Air Force had stationed him at the time. In December 2002, petitioner and respondent had talks about R.C.'s situation in Israel. As a result, the parties agreed that R.C. would move to Germany to live with respondent. The parties, however, could not agree on when R.C. should return to Israel.
On March 2, 2004, the USAF assigned respondent briefly to Qatar and then back to the U.S. At the end of his tour, respondent and the four children continued to live in the U.S. Petitioner, who was still living in Israel, filed with the Maryland federal court asking for the return of, and/or access to, the children. The court found that it lacked jurisdiction to hear petitioner's access claims and dismissed that prong of the petition. The court then granted petitioner's motion for final judgment and petitioner noted a timely appeal. Reviewing the case de novo, the Fourth Circuit affirms.
The petitioner argued that the plain language of 42 U.S.C. Section 11603(b) of the ICARA, which implements the Hague Convention on the Civil Aspects of International Child Abduction [T.I.A.S. 11670; in force for U.S. July 1, 1988], confers jurisdiction on federal courts to hear access claims. It states that: "[a]ny person seeking to initiate judicial proceedings under the Convention for the return of a child or for arrangements for organizing or securing the effective exercise of rights of access to a child may do so by commencing a civil action by filing a petition for relief sought in any court which has jurisdiction of such action and which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed."
The Fourth Circuit disagrees with petitioner's reading. It points out that the correct analysis does not begin with Section 11603 but with Section 11601, ICARA's implementing language. Section 11601 does not mention visitation rights or access rights until the last subsection. Subsection (a)(4) prescribes that "[t]he Convention . . . establishes legal rights and procedures for the prompt return of the children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights." Moreover, subsection (b)(4) provides that "the Convention and this chapter empower courts in the United States to determine only rights under the Convention and not the merits of any underlying child custody claims."
Article 21 of the Hague Convention - - itself entitled "Rights of Access" - - allows for applications to "secure and organize" rights of access to the local Central Authority, in this case, the U.S. Department of State. This differs markedly from Article 12 of the Convention. This Article provides for the filing of judicial proceedings and grants judicial authority over wrongful removal or retention cases. The context makes it clear that the Convention does not empower the federal courts to exercise jurisdiction over access claims.
The Fourth Circuit further cites long established precedent that federal courts are courts of limited jurisdiction in family law matters. "With the exception of the limited matters of international child abduction or wrongful removal claims, which is expressly addressed by the Convention and ICARA, other child custody matters, including access claims, would be better handled by the state courts which have the experience to deal with this specific area of the law." [Slip op. 8-9]
This does not leave the petitioner bereft of a remedy to enforce the exercise of her access rights, however, since the Convention does not preclude the petitioner from filing a claim for visitation rights in the appropriate state court under state family law.
Citation: Cantor v. Cohen, 442 F.3d 196 (4th Cir. 2006).
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